Views On Supreme Court Ruling In Boy Scouts' Case:

July 10, 2000|By JOSEPH LOCONTE

The Supreme Court's recent decision upholding the right of the Boy Scouts of America to oust a gay scoutmaster is being denounced as an assault on civil rights. Instead, it represents a much-needed defense of civil society.

By throwing up a First Amendment firewall between big government and the voluntary sector, the ruling strengthens the freedoms of those on both sides of the nation's cultural battles.

Reasonable people can disagree about homosexuality. But the court has insisted that private institutions must be free to make their own moral judgments about this issue. In a 5-4 decision, the justices overturned a New Jersey Supreme Court ruling that James Dale, expelled for being a gay activist, be reinstated.

"The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," Chief Justice William Rehnquist wrote for the majority. Forcing them to accept gay scoutmasters "would significantly burden" the group's ability to sustain its moral teachings.

The court also rejected claims that the Scouts is a "public accommodation" and subject to state laws banning discrimination. That's good news for any civic or activist group.

Why? Because if rights of free speech and association don't apply to Scout troops -- who take no government money, are sponsored mostly by churches, and meet in living rooms -- they don't apply to anyone.

That explains why at least one gay organization stood with them. Says Rick Sincere, president of Gays and Lesbians for Individual Liberty: "The rights of all of us to engage in a free association were at risk."

Gay activists surely will use the publicity of the case to seize the cultural offensive.

Michael McConnell, a church-state litigator who helped defend the organization, said: "We win, but we're viewed as bigots who must be tolerated."

But the court's decision undercuts the discrimination mantra. By reversing the New Jersey court, the justices have made it much harder to use sexual orientation as a trump card in the struggle to define civil rights.

Let's be clear: No responsible voices want to deny gays equal protection under the law. But state laws banning discrimination based on sexual preference, enacted in New Jersey and 10 other states, do not revoke the bedrock principles of a free society.

"It appears that homosexuality has gained greater societal acceptance," wrote Rehnquist. "But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views."

The court's ruling emphasizes the role of persuasion, not coercion, in a pluralistic society. This is a lesson that must not be lost on social conservatives, who sometimes are too eager to use laws as a lever for social change. They view the court's ruling as a victory for traditional morality.

Not exactly: It's a vindication of the seedbed for morality -- namely, civil society. For it is here where families, charities, churches and other private groups do the messy but vital work of forming character and renewing culture.

This is why the Framers enshrined free speech and association as the "first freedoms." They worried a great deal about how to prepare people for self-government. They knew that only a legion of private groups and associations -- each building citizens according to their own moral vision -- could get the job done. Their answer was to safeguard a vibrant, and independent, voluntary sector against government intrusion.

It was the court's answer as well.

Joseph Loconte is the William E. Simon Fellow in Religion and a Free Society at the Heritage Foundation, 214 Massachusetts Ave. NE, Washington, DC 20002.